Gallery archive

Moving on from LSO’s abandonment of #EDI: The Case for Affirmative Action in Canadian Law

After a week in which the Law Society of Ontario moved to repeal a requirement that lawyers and paralegals make an annual private pledge to promote equality, diversity and inclusion (“EDI”), the Bar must now reflect on the root cause of this public policy failure: Asking a privileged group to give up its perch, or even thinking about giving it up in the comfort and privacy of their law offices, is to ask a noble act beyond our ability. Three decades ago, about the time when I was starting in legal practice, American lawyer Daniel Lugo wrote this about the plight…

The Ethics of Lawyers Recording Conversations

Canadians’ interest in legal ethics continues to remain very high.  What, then, are the ethics of a lawyer’s secret recording of a telephone call with a client, including the employees of a client? Rule 7.2-3 of the Ontario Rules of Professional Conduct provides: 7.2-3 A lawyer shall not use any device to record a conversation between the lawyer and a client or another legal practitioner, even if lawful, without first informing the other person of the intention to do so. Chapter XVI, s. 5 of the Canadian Bar Association’s Code of Professional Conduct goes even further by extending the prohibition to conversations with “anyone else”:…

Cabinet Confidentiality: Navigating the Procedural Ins and Outs

What is cabinet confidentiality?  How does it restrict what a minister of the Crown can reveal in public discourse?  How can a court, tribunal or parliamentary committee compel disclosure, and how can that process be blocked? Cabinet confidentiality is a feature of Canadian constitutional law derived from Part III of the Constitution Act, 1867, in which Executive Power was modeled after the government of the United Kingdom and inherited from the U.K. Crown.  U.K. government by cabinet is based on collective responsibility.  All ministers, including the prime minister, are responsible for cabinet decisions and the legislative agenda tabled in parliament.  Every…

Talking to the Attorney-General about Solicitor-Client Privilege

Out of the blue, solicitor-client privilege is a meme.  The subject excites legal ethics nerds but is not recommended dinner-party conversation.  Until now. If the public weren’t confused enough by this legal principle, a former Attorney-General hires a retired Supreme Court judge as her legal counsel.  The former minister declines comment to reporters on the Hill, invoking solicitor-client privilege.   Here is a primer for non-lawyers (and lawyers) on the legal principles at play. Privilege Solicitor-client privilege in Canada is a principle of judge-made law that dates back to the English courts of the 1500’s.  The principle developed from the sensible…

Is it time to unshackle law schools from law societies?

On December 10, 2018, the Law Society of Ontario chose to stay the course on its dual streams for lawyer licencing.  Apart from a few substantive enhancements such as the requirement for paid internships, a candidate for membership in the legal profess ion must either article under an approved lawyer or pursue an experiential education program called the Law Practice Program. In its report of the decision, the Canadian Lawyer reported that the shortage of internship opportunities is only one problem in the Ontario market for legal services: “By 2025, there are expected to be 29,500 law school graduates but only…

The Trial of Hillary Clinton, the Lawyer and Woman

“The episode is one of … America’s most notorious cases of mass hysteria. It has been used in political rhetoric and popular literature as a vivid cautionary tale about the dangers of isolationism, religious extremism, false accusations, and lapses in due process.” No, this is not a future historian’s description of yesterday’s election of the 45th President of the United States, or of his tenure in office, or of America’s choice of an unfit man over a qualified woman as its chief executive.  It is the Wikipedia commentary on the Salem Witch Trials. As mob chants of “lock her up!” resonated through…

A Science Manual for Canadian Judges. Who knew we all had to read it?

This summer, while researching for a paper on the Canadian law of causation in the age of torts committed in cyberspace, I re-read the Science Manual for Canadian Judges (Manual).  A 2013 project of the Canadian National Judicial Institute, the Manual was intended to fill a much-needed lacuna in our legal system.  Most lawyers are awful scientists.  So the publication received little fanfare and I don’t know many who have read it. Judges are appointed from a pool of senior lawyers.  It stands to reason that most judges possess a poor grasp of scientific principles.  The demographic fact that the last time most…